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March 29, 2017

Wheelchair users had a small victory yesterday when the Supreme Court of Nova Scotia favored them in a dispute with the Human Rights Commission.

Mysteriously the Commission had refused a complaint about discriminatory enforcement of public health regulations (more in a bit).

Justice Frank C. Edwards will order the HRC to process the complaint. His decision has important implications:

There is no provision of the Act which allows an HRO to refuse to accept a complaint.

Counsel for the Commission argues that the HRC would be overwhelmed if every inquiry had to be treated as a complaint. I am not impressed with that argument. Mr. Reed was not simply making an "inquiry", he was lodging a complaint. As such, he had the right to expect that his complaint would be "inquired into" [s.29(1)]. Ifthe Commission or the Director ultimately decided to dismiss the complaint, then that dismissal must be on the basis of one of the reasons set out in s.29(4). It is simply not an option for the intake worker to decide not to accept a complaint.

[9] Counsel for the HRC referred to the "sheer volume" of inquiries. What that means and how it relates to Mr. Reed's complaint is somewhat puzzling. Ifthere are statistics available to show that unless staff can refuse to accept complaints the Commission will be overwhelmed, those statistics should be shown to the appropriate legislative authority. They have no relevance in the context of this review.

I find that the decisions of the first HRO and the second HRO were both unreasonable. The first decision was not justifiable, the second was neither justifiable, transparent, or (in some respects) intelligible

Now for the hard work of proving our case.

Briefly:

Almost exactly a year ago I wrote about a serious and dangerous public health issue arising from the refusal of Environment Minister Miller to enforce a section of the food safety regulations.

Because her refusal disproportionately impacts people with disabilities, and because of similarities with other public health situations like Flint, Michigan, where governments have failed in their duty, she must be compelled to carry out her obligations.

Section 20 of the food safety regulations very clearly states.

20 (1) A food establishment must have washroom facilities for staff and washroom facilities for the public available in a convenient location, unless exempted by the Administrator.

(2) A washroom facility must be constructed, equipped, and designed in accordance with the Nova Scotia Building Code.

(3) If an inspector gives written approval, the same washroom facilities may be used for both staff and the public.

There are restaurants with accessible dining without accessible washrooms and they are in violation of regulations. Le Coq and The Five Fishermen are examples of restaurants in Halifax with accessibility-mandated patio dining, yet washrooms are downstairs or behind steps. This is a clear violation of 20 (1). The fundamental question is "Are people with disabilities entitled to the same protections as everyone else?". In so many cases, government's answer is a resounding "No!"

On February 18, 2016 the Minister wrote to me:

"I fully appreciate your concern but as you are probably aware, the construction/renovation of buildings that house foodservice establishments involve a number of jurisdictions and permit requirements. As indicated in your e-mail, our food safety staff apply the Food Safety Regulations that are designed to assist in the prevention of human illness through our foodservice sector. Other regulated areas associated with such facilities involve agencies responsible for our liquor laws, safe labor standards, fire safety standards, building/construction standards, etc. It is this latter focus area that would capture your concerns. Municipalities across Nova Scotia have building permit requirements and inspection services that apply the appropriate building code standards and municipal bylaws."

As Justice Edwards so eloquently put it:

The Human Rights Act trumps the Ombudsman, the Building Code of Canada, and the other affected departments of government. A complaint alleging discrimination has been filed. The HRC is obliged to deal with it. It does not matter that other arms of government can simultaneously undertake their own investigations.

Like the government of Michigan which concluded the drinking water contamination in Flint was due to substandard plumbing and not their own malfeasance, Minister Miller insists her regulations are only about the building code, and not about public health. It's as if Louis Pasteur never lived.

Among the hundreds of inequities visited upon people with disabilities in the Province of Nova Scotia, it nevertheless is alarming that government completely misunderstands the fundamentals of public health.

One in One Thousand - The forgotten legacy of James McGregor Stewart

James McGregor Stewart, 1889-1955, son of a Pictou lawyer, grandson of a Cape Breton minister, was a principal of Stewart, McKelvey, the downtown Halifax law firm. In his time he was Nova Scotia’s premier corporate lawyer, and he wrote the rules for many of our most successful and long-lived companies. He was president of the Canadian Bar between the wars. He is one of fewer than 500 Canadians to be awarded the Commander of the British Empire for services to the Empire in WW II. His obituary was in the New York Times.
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